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Trabalho apresentado à disciplina de THAM do Curso

Superior de Bacharelado em Medicina da Universidade
Federal do Pampa (UNIPAMPA) Campus Uruguaiana,
como requisito da disciplina.

Orientadora: Profa. Dra. Juliana Lopes de Macedo

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MACEDO, J. L. de; The Multiple Meanings of ‘Risk’: Views on the Abortion of
Non-Viable Fetuses Among Brazilian Medical Doctors and Magistrates. 29p. The Formatted: Font: (Default) Times New Roman, 12 pt,
multiple meanings of ‘risk’: views on the abortion of non-viable fetuses among Not Bold
Brazilian medical doctors and magistratPrograma de Pós-Graduação em Antropologia

RESUMO Formatted: Font: (Default) Times New Roman, 12 pt

O artigo tem como objetivo compreender as concepções de risco acionadas pelo campo médico e Formatted: Font: (Default) Times New Roman
interpretadas pelo campo jurídico a partir da análise de decisões judiciais relativas à autorização
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do aborto de fetos com anomalias fetais incompatíveis com a vida e de entrevistas não-diretivas
realizadas entre médicos e magistrados. Verificamos que a categoria de risco é bastante
manipulada por médicos e magistrados na medida em que essa categoria é acionada enquanto
uma justificativa para tornar moral o aborto de fetos inviáveis, com o objetivo de afastar o aborto
da esfera da escolha individual da gestante para inseri-lo no âmbito do aborto terapêutico.
Destaca-se também o caráter polissêmico do discurso sobre risco, tendo em vista que ele é
utilizado tanto para conceder ou negar as autorizações judiciais para aborto, como para atribuir a
responsabilidade da decisão sobre o aborto aos médicos.
PALAVRAS-CHAVE: Risco, Aborto,; Campo Médico e; Campo Jurídico. Formatted: Font: (Default) Times New Roman, 12 pt
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The article seeks to understand the conceptions of ‘risk’ produced in the medical field as they Formatted: Font: (Default) Times New Roman
come to be interpreted in the legal field. It draws on legal decisions concerning authorization for
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aborting fetuses bearing anomalies incompatible with life, and on non-directive interviews with
medical doctors and magistrates. The category of ‘risk’ was found to be subject to considerable
manipulation by both doctors and magistrates in being deployed as moral justification for the
abortion of non-viable fetuses. Abortion is thus displaced from the sphere of individual choice to
the domain of therapeutic abortion. The article also highlights the polyvalence of risk discourse,
since this notion is deployed both to affirm and to deny legal authorizations for abortion, and to
attribute responsibility for abortion decisions to doctors.
KEYWORDS: Risk, ; Abortion, ; Legal Field, ;Medical Field. Formatted: Font: (Default) Times New Roman, 12 pt
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The Multiple Meanings of ‘Risk’: Views on the Abortion of Non-Viable Fetuses Among
Brazilian Medical Doctors and Magistrates ............................................................................. 5

Norm and Strategy: operationalizing the notion of risk among physicians ....................... 8
Risk: a polyvalent category .................................................................................................. 11
The silence of law versus failure to provide care: accusations between physicians and
magistrates ............................................................................................................................. 17
Behind risk: disputes between the medical and legal fields............................................... 20
CONCLUDING REMARKS .................................................................................................... 23

REFERENCES .......................................................................................................................... 26

The Multiple Meanings of ‘Risk’: Views on the Abortion of Non-Viable Fetuses

Among Brazilian Medical Doctors and Magistrates

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Prior to April 12th 2012, the abortion of anencephalic fetuses in Brazil required Formatted: Justified, Indent: First line: 0.49", Line
spacing: 1.5 lines
legal authorization. Although a Federal Supreme Court decision issued on this date
overruled the need for authorization in this particular case, other types of fetal anomalies
incompatible with extrauterine life remain dependent on assessment by the courts on a
case-by-case basis. To obtain authorization, a legal case needs to be filed containing some
kind of medical justification for the abortion. Medical doctors participate in these cases
by submitting a report containing evidence that the pregnancy in question is generating a
fetus with some type of anomaly incompatible with extra-uterine life. Since this medical
report will support a legal case, it must comply with certain parameters, including a
diagnosis and the indication of a medical procedure appropriate for treating the condition.
According to the physicians interviewed, besides confirming fetal non-viability, the
report must also recommend abortion as a medical solution to the problem – in other
words, the fetus’s non-viability and the pregnant woman’s wishes alone are insufficient
grounds for legal persuasion. It is up to the doctors, therefore, to advocate on behalf of
the expectant mother by providing a medical justification for her decision to request

In the cases analyzed here, one claim frequently put forth as justification for
abortion is the risk that this kind of pregnancy poses to women. ‘Risk’ is one of the
categories around which modern society has been organized (Beck 1993, Neves 2004).
Its importance is such that some authors have gone as far as to suggest that risk is at the
core of the contemporary world – thus the emergence of a ‘risk society’ (Beck 1993,
Spink, 2001). According to Douglas (2002), risk means danger and implies a particular Formatted: Font: (Default) Times New Roman, 12 pt

way of relating to the future. While the world’s dangers were once seen from a fatalistic
perspective, now these dangers can be domesticated, controlled, predicted and avoided
through systematic observation (Luiz & Cohn, 2006). Formatted: Font: (Default) Times New Roman, 12 pt

Epidemiology in particular has enabled the control and monitoring of individual

health, and risk is a key conceptual tool towards this end (Ayres 2002, 2011). Through
statistics, and in particular probability theory (Luiz & Cohn, 2006), risk is translated into Formatted: Font: (Default) Times New Roman, 12 pt

mathematical reason. For Rabinow (2002), as well as a mathematical measurement, risk


is also a central notion in modern medicine’s strategies of control, surveillance, and

discipline. In his words:

Modern prevention is above all the tracking down

of risks. Risk is not a result of specific dangers posed by the
immediate presence of a person or a group but, rather, the
composition of impersonal ‘factors’ which make a risk
probable. Prevention, then, is surveillance, not of the
individual but of likely occurrences of diseases, anomalies,
deviant behavior to be minimized, and healthy behavior to
be maximized. We are partially moving away from the older
face-to-face surveillance of individuals and groups known
to be dangerous or ill (for disciplinary or therapeutic
purposes), towards projecting risk factors that deconstruct
and reconstruct the individual or group subject. This new
mode anticipates possible loci of dangerous irruptions,
through the identification of sites statistically locatable in
relation to norms and means. (2002: 100)

Even though the medical field describes risk in mathematical terms – and is thus
represented as impartial, universal, concrete data – empirical observation showed the
opposite: the ambivalent, elastic character of the notion of risk as it is operationalized and
deployed in practice. In this sense, this article looks to understand the notions of risk put
forth by the medical field and interpreted in the legal field, based on an analysis of legal
decisions regarding authorization for aborting fetuses with anomalies incompatible with

The data set on which this article is based includes 27 legal decisions1 on the
abortion of fetuses with anomalies incompatible with life issued between 2001 and 2011
by the Rio Grande do Sul State Court of Justice (Tribunal de Justiça do Rio Grande do
Sul: TJRS). Of these 27 decisions, 19 are requests for aborting anencephalic fetuses, and
8 regard abortions linked to other types of fetal malformation. In the first group, three

Since the analysis encompasses legal decisions made in both trial and appeals courts, I have opted to
refer to all these instances as legal decisions.

were denied, and another three were deemed compromised either because the decision
had already been issued made by one judge alone through a temporary court order2 or
because the expectant woman abandoned the case. In the case of seven of the 12 orders
authorizing the abortion of anencephalic fetuses, the three judges agreed to the request,
and in four cases one of the judges refused to grant the order. Of the eight requests for
abortion based on other fetal malformations, only three were granted.

To make better sense of the contexts in which these legal decisions were made, I
also used a methodology based on non-directive interviews with physicians and
magistrates possessing acknowledged experience in this kind of legal case. I interviewed
nine gynecologist-obstetricians3 and six magistrates who took part in cases involving non-
viable fetuses in the Rio Grande do Sul Court of Justice.4 The research project was
approved by the Ethics in Research Committee of the Federal University of Rio Grande
do Sul, and all informants were invited to participate in the research by means of a Term
of Free and Informed Consent. Since this study aims to analyze risk-based justifications
contained in legal decisions and interviews with medical doctors and magistrates
concerning requests to abort anencephalic fetuses and those with other kinds of
malformations, I shall henceforth describe this procedure through the term abortion of
non-viable fetuses.5

The appeals court involves an assessment of the case and vote by three judges, one of whom is the
rapporteur. But when a temporary order is requested (that is, when the interested party requests urgency),
it is common for just the rapporteur to vote. Irrespective of this previous decision, the case follows the
regular procedure and is assessed again by two other judges, who, in the cases analyzed here, concluded
that the trial had been compromised since it was no longer possible to undo the decision (i.e. the abortion).
All doctors interviewed were affiliated with hospitals with recognized capacity for managing high-risk
pregnancies, and with hospitals belonging to the referral network where abortions may be legally performed
in Rio Grande do Sul.
Five of the physicians interviewed were female, and four were male. Of the magistrates interviewed, only
two were women. Among both groups (medical doctors and magistrates), neither gender or affiliation to a
particular religion appeared to influence the informants’ views or stances on anencephaly. Both the medical
and legal fields are associated with the male gender (where characteristics such as pragmatism and
rationality are emphasized). They determine the way actors will position themselves in their field of practice
regardless of gender – in other words, profession overlaps with gender. Almost all informants declared
themselves to be Catholic, but most were favorable to the abortion of anencephalic fetuses. This does not
imply that the physicians and magistrates interviewed did not hold religious or moral conceptions, or that
these did not influence their views on the abortion of anencephalic fetuses.It does show, though, that
religious belonging does not determine a person’s stance on this kind of abortion.
Abortion debates involve a wide range of ‘modalities’ such as: voluntary interruption of pregnancy,
necessary abortion, therapeutic abortion, sentimental abortion, humanitarian abortion, selective abortion,
abortion due to fetal anomalies, eugenistic abortion, anticipation of childbirth therapy, legal abortion,
among others. In her analysis of law bills being reviewed by the Brazilian National Congress, Débora Diniz
(2001) argued that the term is not limited to linguistic choices: on the contrary, this choice reflects the
moralities involved in the debates, as well as the strategies chosen to defend different stances on the issue.
In public debates on anencephaly, those supporting abortion deploy the expression ‘anticipation of

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As mentioned previously, the interviewed physicians all stated that when writing
a medical report it is not enough to describe the diagnosis and indicate a technical
procedure for treating the problem in question. To convince a magistrate, further
justification is required, especially in the case of procedures involving abortion. Doctors
therefore deploy various strategies to improve their chances of success. The notions of
norm and strategy proposed by Bourdieu (2007b) in his study of the Kabila marriage
system can help make sense of how medical reports on the abortion of non-viable fetuses
are constructed. Norm may be defined as a prescriptive system determining how things
should be. Strategy, in turn, is informed by the ‘practical sense’ of agents involved in the
game, which makes possible the manipulation of norms. Practical strategies become
meaningful in relation to the larger universe of possible strategies, as defined by the
habitus (Bourdieu, 2007b). In the case of abortion, the norm is limited to cases of rape or
risk of the expectant mother dying. Given that the medical habitus is governed by
scientism and rationality, one possible strategy available is to deploy scientific
expediencies to justify a case for abortion that is not written in the norm. These strategies
have translated into the definition of a fetal anomaly incompatible with extra-uterine life,
scientific claims, and flexibilization of the notion of risk in order to frame pregnancies
with anencephalic fetuses in terms of a category prescribed by the law – namely,
therapeutic abortion. So, for example, one informant declared that writing a good medical
report to support the abortion of anencephalic fetuses must involve:

First: certainty about the diagnosis. Second: certainty

about the prognosis. And another thing: come up with a persuasive
argument. How to do that: if I write that it’s a case of brain death,
they’ll say it’s not; if I say that the anencephalic fetus will increase
the probability of pregnancy-related complications, that’s not
documented in the literature. But if I write that it increases risk,
now that is documented in the literature, and then I add all the
evidence for this. (Carlos, gynecologist-obstetrician, Hospital D
and private clinic.)

childbirth therapy,’ while those opposing the practice use the term abortion. I understand the choice of the
expression ‘anticipation of childbirth therapy’ as a legitimate political choice aimed at minimizing moral
discussions on abortion and at making the abortion of anencephalic fetuses more ethically, legally and
morally acceptable to society. For the purposes of this article, however, I have opted to use the expression
abortion of non-viable fetuses to refer to the voluntary interruption of pregnancy in such cases. This choice
is also political, inasmuch as I support abortion as a woman’s right that deserves to be rendered visible as

The deployment of the category ‘risk’ is not a haphazard choice by the physicians,
but rather a claim that enjoys high social appeal due to the part it plays in organizing
modern society and how it relates to the future by minimizing the dangers inherent to life
itself. Moreover, by establishing risk as a justification for aborting anencephalic fetuses,
the focus is shifted away from the pregnant woman’s moral decision towards a decision
made within a technical sphere.

The meanings attributed to risk in pregnancies with anencephalic fetuses are quite
flexible, and medical doctors have engaged differently with the matter both in theory
(technical reports) and in practice (management of pregnancy). In the words of two

In principle, no, it’s about speculation. Let’s suppose she reaches the end of her
pregnancy and the baby is not born, she is cared for in an inappropriate facility or by
someone who is not experienced, and eventually opts for a C-section, which is an
unnecessary surgery involving anesthetics. (Paulo, gynecologist-obstetrician, Hospital A
and private clinic.)

If the child has a tendency for increased amniotic fluid, if it doesn’t

swallow properly, then nature may interpret the fact as a lengthier
pregnancy. So this kind of issue could be considered. This
argument is often deployed in legal authorizations. But this is, let’s
say, a probability, not a prognosis. An increased risk. The best
argument, I think, is that every pregnancy is risky (…) If you run
this risk when all is well with the baby, that’s just natural. But for
a young, fertile woman to run the risk of serious complications for
a baby that is not even going to live is unjustifiable (…) In the
literature, you’ll find a lot of people making this claim. It’s a
legally functional claim. But clinically, epidemiologically, it’s
different. (Claudia, geneticist, Hospital A and private clinic.)

These statements make clear that, in practice, risk is an exceptional possibility that
may be actualized in extreme cases, such as increased amniotic fluid or an unnecessary
C-section. But for the doctors, these factors are not epidemiologically significant: in other
words, they would not by themselves justify an abortion. For them, the key justification

for abortion is fetal unviability. Here, though, they have to persuade another agent – the
judge – who may take into account factors other than the unviability of the fetus. Thus,
the flexibility and malleability of the category ‘risk’ is part of a valid and persuasive
strategy for justifying the abortion of non-viable fetuses. In this context, claims about
increased risk become part of a rhetorical strategy aimed at associating the abortion of
non-viable fetuses to necessary abortion – that is, cases where the pregnant woman’s life
is at risk. This was a common tactic in the cases I analyzed, and has also been found by
Diniz (2003).

Since the justification included in the medical report is relatively fragile, given
that risk is not immediately evident, physicians resort to the production of ‘sub-
evidence,’: that is, documents appended to reports in order to support their veracity. There
is an understanding among doctors that, in the case of abortion of anencephalic fetuses,
all reports must be accompanied by ultrasound images diagnosing fetal unviability. And
since not everyone understands just how serious the lack of a cranial vault is, some teams
include photographs of anencephalic newborns in order to show that this anomaly is not
just a handicap:

...include a picture of an anencephalic baby to move them, because

many judges don’t know, they have no idea what they are dealing with.
They think it’s some problem internal to the head. They don’t know
there’s no vault, the brain is rudimentary, you know, that extra-uterine
life is impossible. (Ana, gynecologist-obstetrician, Hospital D.)

In this context, photographs produce truth in much the same way as image-based
diagnostic exams. If ultrasounds construct the fetus as a person (Chazan, 2007), so
photographs of anencephalic newborns make it possible to visualize their non-viability –
when the judge looks at it, she can come to her own conclusions about the possibilities of
extra-uterine life. In his study of how the scientific literature is constructed, Latour (1987)
argues that the references, citations, footnotes, graphs, tables and so on that make up a
scientific text signal whether the claim will be taken as fact or fiction, since to contest an
article that includes many references requires all of them to be challenged. For a judge to
oppose abortion from a medical perspective, therefore, she would need to contest the
medical statement, the ultrasound, the assessment of the doctor who performed the
ultrasound, the photographs of anencephalic fetuses, and the entire scientific literature
appended to the report. Even so, sometimes a judge does indeed refuse to grant

authorization. And since, according to the physicians interviewed, it is impossible to

dispute all these elements, the reason for such a refusal can only be down to the
magistrate’s bad faith. In the words of one informant “the judge herself, her character, I
don’t know, her religion even, because even a judge has preconceived views” (Ronaldo,
gynecologist-obstetrician, Hospitals A and B). In the face of clear and indisputable
‘scientific evidence,’ therefore, the only alternative left to explain the refusal to grant an
abortion permit is the interference of some religious belief (defined in opposition to

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It is interesting to observe that while doctors rely on risk claims to justify the
abortion of non-viable fetuses, magistrates deploy the very same notion to both deny and
grant abortion authorizations. Here Foucault’s idea of the tactical polyvalence of
discourse (Foucault 1990) can help make sense of how risk may be used to different ends
in the same process. For Foucault, power and knowledge are articulated in discourse.
However, the world of discourse is not split between the accepted and the excluded;
rather, there are a multitude of discursive elements that can be recruited into different
strategies. In this sense, it is risk’s polyvalence that enables it to be deployed in the
justifications put forth by different strategies and stances.
Risk-based discourse was present in more than half the legal decisions analyzed.
The strategy involves either approximating or distancing pregnancies involving a non-
viable fetus to pregnancies that pose a death risk to the woman, whether or not the
procedure is explicitly framed as therapeutic abortion.
One essential precondition for granting permission to abort in these cases is
certitude about the fetus’ non-viability. Evidence to this end is provided through medical
reports appended to the case. For this reason, regardless of the outcome, debates during
legal assessment have to address issues of a medical nature. In her analysis of legal
permits for aborting anencephalic fetuses, Diniz (2003) also found that risk-based
arguments concerning the pregnant woman’s health are the most common in this kind of
jurisprudence. Except for two cases (one of anencephaly and the other concerning a fetus
with another kind of malformation incompatible with life) where the claimants’
pregnancies were considered to involve risk of death, all other opinions stressed fetal non-

viability and the need for a C-section. This leads to another issue regarding risk: although
C-sections are generally associated with higher risks – hence the recommendation of
abortion in the case of non-viable fetuses –, it is widely accepted among both obstetricians
and pregnant women. Brazil has one of the world’s highest rates of C-section births
(WHO 1985, Víctora et al. 2011) and prevalence is higher among private hospitals than
the public health system (Faúndes & Cecatti 1991, Yazlle et al. 2001; Fabri et al. 2002,
Faúndes et al. 2004, Haddad & Cecatti 2011).6 This suggests that the higher on the
economic scale, the more autonomy the woman has for choosing this kind of procedure,
even if it is more risky. C-sections are considered to involve risk, but risk is inherent to
any pregnancy. What makes physicians contraindicate use of a cesarean section in the
case of non-viable fetuses, therefore, is not just risk. From the doctors’ perspective, the
interruption of pregnancy is equivalent to an abortion: to deploy a C-section to this end is
thus unthinkable for them. As they explained during the interviews, it only makes sense
for viable fetuses, not only because of the increased risk but because a C-section is not an
abortion method. The only abortion procedure recommended for pregnancies above
twelve weeks is pharmacological, which involves a method similar to induced childbirth.
As remarked earlier, doctors observe that the kind of risk cited in their reports is
not the same kind written into the Penal Code. Women are not at risk of death and may
take pregnancy to full term without harm to their health. But the request to abort a non-
viable fetus requires justification, and from the physicians’ point of view, this justification
has to go beyond fetal non-viability. Widening the concept of risk is thus deployed as a
strategy to persuade magistrates to grant the authorization for abortion.
In the cases where authorization for aborting non-viable fetuses was granted,
magistrates themselves emphasized the death risk faced by the pregnant woman. Indeed,
legally this is the most morally acceptable claim, since it is clear to the judges that in the
event of having to choose between the mother’s life and that of the fetus, the former
should prevail, as prescribed by Brazil’s Penal Code. The passage below, taken from one
of the cases analyzed, is emblematic:

(...) anencephaly is characterized by the absence of

cranial bones and the brain, thus making the fetus incompatible

In their study of 86,120 births in the city of Ribeirão Preto (São Paulo State) between 1986 and 1995,
Yazlle et al. (2001) found the C-section rate to be 32.1% in public hospitals, and 81.8% in private hospitals.
Fabri et al. (2002) compared the rate of C-sections between one public and one private hospital located in
the state of Minas Gerais in 1996, and found that C-sections accounted for 24.3% of births in the public
hospital against 89.2% in the private hospital. Haddad and Cecatti (2011) found that the rate of C-sections
in Brazil in 2006 was 30.1% in the public system versus 80.7% in private hospitals.

with life after birth. It also poses health risks to the pregnant
woman, since birth of a child with acrania may be difficult, and
pregnancy itself may be delayed for over one year. (…)
Physicians concluded that the pregnancy needs to be interrupted
as an immediate and undisputed procedure, since death of the
unborn is unequivocal, and ending the pregnancy will bring
benefits to the woman. (Case no. 04, Appeals Court Judge A,

In this decision, the magistrate accepted that pregnancy with an anencephalic fetus
does pose health risks to the pregnant woman, since childbirth is more difficult and
pregnancy itself may be delayed7 – the need for abortion being thus indisputable.
Moreover, the fact that pregnancy last longer in this case suggests that anencephalic
fetuses may not fit the category of ‘humanity.’

However, risk-based claims are only successful when magistrates are already
inclined to adopt a favorable stance to aborting non-viable fetuses. Judges who reject such
requests (who, according to our data, based their decisions on a belief in the sacrosanct
nature of human life and the need to control procedures they consider eugenistic) usually
aim first at risk-based arguments. One example is a case involving a medical report that
confirmed anencephaly and, therefore, incompatibility with extra-uterine life. The request
was denied because two of the three ultrasound exams presented by the claimant showed
that the volume of amniotic fluid was normal, so the magistrates understood that there
was no risk to life involved (even though one exam did show increased volume, which
could pose added risks to health). The statement below is another example of how judges
have used the notion of risk to deny authorization. Here, the Appeals Court judge
recognizes that the ultrasound confirmed the fetal malformation. However:

It did not show that the patient is at risk of death or suffering from a
serious condition. (…) Therefore, given that this is not a case of
therapeutic abortion in any of its modalities [i.e., necessary (to save the
pregnant woman’s life) or prophylactic (to save her from a serious
condition)], the request cannot be granted. (Case no. 25, Appeals Court
Judge C, 2008.)

The difficulties involved in giving birth to an anencephalic fetus and the need for a C-section are
mentioned in all medical reports. The lack of a cranial vault makes vaginal birth more difficult. However,
when abortion is authorized, it is preferably carried out through vaginal delivery, precisely the kind
considered more complicated in the case of anencephalic fetuses.

In these cases, what makes the abortion of a fetus with malformations

incompatible with life acceptable or not is not the harm that the pregnancy may cause the
woman. Those magistrates who use this argument in order to grant authorization employ
a legal manoeuver whereby such requests are included in the category of causa excludente
de ilicitude (permissible illegal activity), which allows for abortion when the pregnant
woman’s life is at risk. In most of the cases analyzed here, this risk is virtual, since in
most of the medical reports the risk of death appears as a prognosis inherent to any
pregnancy. Nonetheless, this has clearly been an effective argument, given the high
number of authorizations for abortion granted in cases where this was the central claim.
One of the magistrates interviewed declared that

...to get an injunction, you need to get a lawyer. This happens within
hours, minutes even – if there’s a risk of death, you can’t wait two days
for an authorization and a warrant, can you? So there was this problem,
I’m not saying suspicion, but, why would you make this request if the
woman is dying? It should have been made already, it would even count
as a case of medical malpractice [laughs]. (Antônio, Magistrate.)

For this informant, the very existence of a legal case shows that there is no risk to
the pregnant woman concerned – had there been any real risk, there would have been no
time to wait for a trial in order to perform the abortion. Another informant declared:

I haven’t heard of any case of the refusal to authorize eugenistic

abortions increasing death rates among mothers. I’ve seen many cases
of mothers having children suffering from anencephaly, microcephaly
and acrania where the children were born and there was no increased
risk of death to the mother. (Laura, Magistrate.)

The magistrates who reject such requests realize that the risk-based justification
included in the medical reports is a strategy for displacing the abortion of non-viable
fetuses from the pole of selective/eugenistic abortion to that of necessary/therapeutic
abortion. Those who grant authorization also recognize risk-based justifications as a legal
strategy, and are well aware that this risk is virtual rather than imminent. However,
matters in reaching their decision is not the risk itself, but fetal non-viability. For example,
one of my informants stated that the elements he deems essential when authorizing the

abortion of a non-viable fetus are “the unwillingness to take the pregnancy to full term,
and a confirmation that the child does indeed have anencephaly” (Roger, Magistrate).

Referring to a peer who rejected a request to abort an anencephalic fetus, another

informant said that:

But then Antônio expected a demonstration of full risk in

the medical report, let’s say: in the case of a desired,
planned pregnancy, which mother would want to interrupt
it? In principle, none. But then the doctor says that the
possibility is one in a million, and you were the ‘lucky’
one. Some will want to take the pregnancy to full term
while trying to deny the problem, waiting for a miracle.
But today there’s no way, previously we couldn’t see the
problem until after birth. Now there’s no need to go
through the entire process [of pregnancy]. But there are
exceptions, and in the end they end up proving the rule.
(Milton, Magistrate.)

According to the physicians and magistrates I interviewed, pregnancies involving

anencephalic fetuses do not pose any additional health risks to the mother beyond those
inherent to any pregnancy. Though not always successful, the risk-based claim is
deployed because fetal non-viability and the pregnant woman’s wishes are not considered
valid justifications from a moral viewpoint. Doctors and magistrates favorable to the
abortion of non-viable fetuses resort to the risk-based rhetoric in order to remove the
weight from the woman’s personal choice: rather than an individual desire, the option to
abort appears as a medical recommendation.

It is interesting to observe a sharp polarity in terms of how magistrates have

interpreted the medical data submitted in legal cases. There is one group that completely
ignores the data brought by the doctors, thus delegitimizing medical science’s expert
knowledge. And there is another group that values technological advances in the medical
field. One of the cases mentioned earlier illustrates how magistrates may ignore or
manipulate the information contained in the medical reports: the request was denied
because, even though the medical exams confirmed anencephaly and showed a difference
in the volume of amniotic fluid, the latter was not interpreted by them as a sign of danger
to the mother’s health. Even though it was difficult to dispute the image of an
anencephalic fetus shown in the ultrasounds, the medical report’s recommendation to
interrupt pregnancy was ignored because the exams failed to show any risk of death.

Another example was a decision issued by a judge who denied the abortion of an
anencephalic fetus on the grounds that, “at the present moment, there is only a statement
by two doctors claiming that a risk of death to the claimant exists should her pregnancy
continue” (Case no. 22, Appeals Court Judge A, 2007 [my emphasis]). Use of the
expression ‘only’ to refer to evidence intended to confirm the risk of maternal death is
remarkable, as well as the fact that two different medical opinions were considered
insufficient to prove the risk to the pregnant woman’s health. The physicians and
magistrates I interviewed all claimed that two medical reports are enough to prove fetal
non-viability in cases requesting legal permission to abort. In this case, where the judge
declared that there were ‘only’ two medical opinions, she was not stating that more reports
were needed, but that the case presents ‘only’ the opinion of doctors. Both the medical
and legal spheres can be framed as social fields in Bourdieu’s sense (Bourdieu 1996,
2005, 2007a): that is, they delimit hegemonic ways of knowing, their own common sense
and general laws. They are made up of agents and institutions that are socially legitimized
representatives of the norms that guide each field. As such, they are authorized (and have
the authority) to deal with certain issues – in our present case, issues concerning health
and the law. In this sense, it can be said that while medicine is guided by science, law is
guided by morality. There seems to be a struggle, therefore, between the medical and
legal fields when it comes to the abortion of non-viable fetuses. While the medical field
has the competence to define and diagnose a non-viable fetus, the decision on what can
or cannot be done about the fact lies outside its scope and is taken instead in the legal

On the other hand, magistrates have not disregarded scientific advances in the
medical field over the last decades. All magistrates who granted permission mentioned
technological advances in medicine and diagnostic precision as arguments for authorizing
the abortion of non-viable fetuses. Nikolas Rose argues that: “Medical jurisdiction
extended beyond accidents, illness and disease, to the management of chronic illness and
death, the administration of reproduction, the assessment and government of ‘risk,’ and
the maintenance and optimization of the healthy body” (2007: 10).

For this author, medical technologies are technologies of optimization, insofar as

they do not seek only to cure diseases but also to control vital processes. It is in this sense
that magistrates point on one hand to technological developments in medicine (especially
when it comes to image-based exams such as obstetric ultrasound), and on the other to

the obsolescence of the Penal Code, as reasons for authorizing the abortion of
anencephalic fetuses.
The silence of law versus failure to provide care: accusations between physicians Formatted: Font: (Default) Times New Roman, 12 pt,
and magistrates Font color: Auto

While some physicians accuse magistrates of taking legal decisions based on

moral views, it is the doctors who most frequently face accusations of neglect from the
magistrates. These are the flip side of the coin of risk-based justification. On one hand,
the rhetoric of risk is necessary for the doctors to justify the abortion of non-viable fetuses
and for the magistrates who authorize the procedure to frame it in terms of the provisions
for legalized abortion. But on the other hand, the demonstration of risk involved in the
pregnancy of non-viable fetuses is not only unable to persuade those magistrates who
stand against abortion, it may also lead to accusations of failure to provide care – in the
sense that the physicians who identified a ‘risk’ did not act thereupon to preserve the
patient’s life or health. This claim was found in eight of the decisions analyzed. Some
magistrates claimed, for instance, that abortion is a medical procedure on which doctors
have to decide:

...my firm stance is that if there is any risk of death to the pregnant
woman, it is not up to the courts to assess the degree of risk involved. It
is up to the doctor, based on his expert knowledge, to assess the
particular case. So, if the risk of death to the woman is supported by
medical parameters, he can proceed under legal authorization, which
overrides all others. (Case no. 28, Appeals Court Judge C, 2008.)

This view of risk differs from the one presented earlier: here the magistrates’ aim
is not to reach a decision but to establish that whenever a risk to the pregnant woman’s
health is involved, decisions should be made by the medical doctors rather than
magistrates. Despite acknowledging the existence of risks, therefore, the magistrate
turned down the requests for abortion on the grounds that this should be a strictly medical
decision, meaning that it can be classified as legal abortion. This kind of argument is also
based on Article 128, Subsection I of the Penal Code, but it comprises a literal
interpretation: pregnancy can only be interrupted in the case of the risk of imminent death,
if there is no other alternative for saving the woman’s life. Many cases have included this
claim, but one of them is particularly telling, since according to the medical opinions
involved, the risk of death was real, not virtual, as in most other cases. This was a thirteen-

week pregnancy of a fetus showing multiple malformations that made it incompatible

with extra-uterine life. The medical report indicated the possibility of uterine rupture and
ensuing internal bleeding, which could indeed lead to death. For the rapporteur (who
authorized all other requests for aborting non-viable fetuses analyzed here), the medical
report stating the risk of death was enough to warrant authorization. The second judge
presented a long discourse on how immoral and eugenistic it was to interrupt the
pregnancy of a malformed fetus, before granting the authorization in view of the risk
posed to the pregnant woman’s life – thus framing the request according to Subsection I,
Article 128 of the Penal Code. However, the last judge denied authorization on the
grounds that the matter was a medical rather than a legal decision. Another example of
this kind of situation can be found in the vote of another judge:

It is impossible to grant legal authorization for abortion, just as it is

impossible to grant legal authorization for legitimate protection of life
or necessity. It is the agent [doctor] who must assess the situation and
act in accordance with his or her own best judgment. (Case no. 7,
Appeals Court Judge C, 2003.)

As far as these magistrates are concerned, then, it is the doctor’s responsibility to

evaluate the patient’s health condition, and, if deemed necessary, carry out the procedure
– given that the Penal Code already provides for exculpation in the case of necessary
abortion. The question may also be raised whether medical doctors are not shirking their
responsibility for these decisions, since in this and in other cases, the risk of death justifies
the abortion of non-viable fetuses based on the Penal Code’s Subsection I, Article 128 –
thus waiving legal authorization. It is interesting to observe how in the case of a woman
pregnant with a normal fetus who did run a risk of dying, tried in 2003, authorization for
abortion was unanimously denied by the TJRS magistrates. Despite presenting a clinical
picture warranting therapeutic abortion according to the Penal Code, her doctors thought
that the request should be legally authorized, while the magistrates argued that only the
doctors could make the kind of decision involved. Another informant further remarked:

I don’t know why it has to go all the way to the courts. If the doctor is
so sure that someone is dying that he’ll remove organs from their body,
why can’t he remove a fetus that has no prospect of living without the
need for authorization? (Eduardo, Magistrate.)

Diniz et al. (2009) note that a legal order is required to abort a non-viable fetus in
Brazil’s public health system. However, this does not necessarily apply to private prenatal
services where abortion is not conditional on legal authorization. One of the magistrates
I interviewed added:

...I would authorize abortion under several circumstances. One of them

is necessary abortion, where the doctor performs the abortion without
the need for authorization. Maybe that’s why this stance is more rigid
in terms of the view that it’s only in the case of a risk of death. Perhaps
the doctors feel a bit uncertain, but that’s what the law states: the
doctor is responsible, there’s no better judge than the doctor, because
otherwise the judge will be putting himself in the doctor’s shoes (…) So
I think this kind of request was made precisely for the doctor to
safeguard himself from any risk, I mean, it’s a kind of protection. But
that’s not what the law is there for, otherwise everyone would go to the
courts in any circumstance, and clear themselves from any
responsibility. (Antônio, Magistrate.)

This interviewee claims that authorization for abortion is deployed as a protective

measure so that physicians can carry out an ‘illegal’ procedure without being held
responsible for their action in the future. Some informants seem eager to draw a clear line
between the responsibilities of the medical and legal fields in such a slippery terrain as
the abortion of non-viable fetuses, which is not limited to one area of expertise. It seems
as though some magistrates would rather yield any decision-making power to physicians,
and vice-versa. One of the doctors I interviewed said that he had been summoned in two
cases requesting authorization for the abortion of anencephalic fetuses. On one of these

(...) it turned quite sour because the prosecutor said, ‘You

want to cover your backside and leave it to us, so you don’t
have to bother.’ A quarrel ensued and I said ‘I just want to
comply with the law,’ and he replied, ‘no, because if this was
a private clinic you’d just do it and not say anything about it.’
It was quite an ugly spat. (Carlos, gynecologist-obstetrician,
Hospital D and private clinic.)

The informant in question argued that since the law does not provide for the
abortion of anencephalic fetuses, the procedure cannot be performed without legal
authorization. On the other side, the prosecutor claimed that doctors are exempting
themselves from a responsibility which is by law theirs, and that were the same situation

to have occurred in a private clinic, the abortion would have been carried out regardless
of legal authorization.

It should be remarked that, in most cases, the magistrates are not opposing the
abortion request itself, but rather affirming the legal provision that when the pregnancy
poses a risk to the mother’s life, the doctor may act without the need for legal intervention.
If the case is rejected, the magistrates ‘wash their hands,’ the doctors have their ‘hands
tied,’ and the woman is forced to take the pregnancy with a non-viable fetus to full term.
Even a magistrate who approved all requests for aborting non-viable fetuses contended
that the purpose of obtaining such authorizations is to protect the doctors:

The doctors could perform the abortion, therefore, but they are afraid
to, because they could only do it [legally] in order to save the woman’s
life or in the case of rape. But then, can you imagine if he performs the
abortion at the patient’s request, and then there is some complication
and she dies during the procedure, then the family comes along… so,
doctors want authorization because there are no grounds for arguing
that performing an abortion in the case of anencephaly is not a crime:
technically it is. But it is not up to us to provide this authorization,
otherwise the wheels won’t turn. (Milton, Magistrate.)

According to this informant, doctors must decide on abortion in these cases.

However, they have no legal grounds for performing the procedure, so they transfer the
decision to someone else (the magistrate). It is clear how this kind of decision troubled
all my informants, magistrates and doctors alike, such that each group tried to hand
responsibility over to the other. This behavior was found even among those generally
favorable to the abortion of anencephalic fetuses.

Behind risk: disputes between the medical and legal fields

The obvious unease about who takes responsibility for the decision is caused,
firstly, by the fact that the procedure at stake is indeed an abortion, and therefore carries
with it the weight of a Christian morality deeply ingrained in a society that criminalizes
this practice. Secondly, there seems to be a dispute between the medical and the legal
fields over the abortion of non-viable fetuses. This struggle surfaces, for instance, in the
way that the notion of risk is deployed in the legal field, as evinced in the statement by a

magistrate cited earlier, affirming that the case ‘only’ contained the opinion of two
doctors – thus delegitimizing medical opinions on anencephaly. It was also notable how
magistrates selectively deploy the content of medical reports, such as in the case where
authorization was rejected, in spite of medical recommendation, on the grounds that, in
the magistrate’s opinion, the pregnant woman did not show any ‘significant’ increase in
amniotic fluid.

On the other hand, some of the physicians I interviewed argued that one major
obstacle for obtaining legal authorization for aborting anencephalic fetuses has been the
bad faith of those judging the case. One of the doctors also stated that:

I’ll tell you this: if the judge had an anencephalic fetus, would he
continue with the pregnancy? I’m certain he wouldn’t! No doubt about
it. But because it’s someone else’s problem… (Ana, gynecologist-
obstetrician, Hospital D.)

In this sense, while magistrates may regard doctors as prone to act ‘unethically,’
the latter often accuse the former of issuing biased, and in some cases ‘unfair,’ decisions.
Authors like Darmon (1991), Carrara (1998) and Rohden (2003) have shown how
accusations and disputes between medical doctors and magistrates are far from new: in
fact, they have been commonplace since the advent of the figure of the medical expert
working in the legal system.

This means that when the two fields are called upon to act in concert, medical
discretion is limited by legal powers. To understand the disputes identified in my data, it
is necessary to go over some of the aspects of how the medical and legal fields were
constituted.8 The data shows that science plays a prominent role when it comes to the
abortion of non-viable fetuses. The notion on which moral authorization for abortion is
based in these cases is fetal non-viability, which is backed by scientific advances,
especially in the field of prenatal diagnosis. In this sense, the medical field has ‘hard’ and
‘precise’ scientific evidence to affirm fetal non-viability. This diagnostic method, as well
as estimates of the fetus’s life expectancy, are based on rational, ordered, systematized
and validated knowledge – that is, on scientific assumptions. This guarantees the

A full account of how these two fields were constructed would require another article. Here I consider
only those elements central to making sense of the disputes found in my data.

recognition and legitimacy of medical knowledge concerning fetal non-viability included

in the medical reports submitted in support of legal cases requesting abortion. However,
my data shows that some magistrates are not persuaded by medical knowledge on fetal
non-viability, nor by the very definition of fetal non-viability. The legal field is not
directed by science, but by interpretation and subjectivity, as Durkheim underlined: “Law
rests, then, on both objective and subjective causes at once. It is not only relative to the
physical environment, to the climate, the number of inhabitants, etc., but even to
preferences, to ideas, to the normal culture of a nation. This is why it is changeable and
why something is required in one place and prohibited in another “(1993: 82).

Evidence is crucial for any trial, yet in the legal field there is no scientific method
for producing evidence or guiding decisions. In other words, the outcome of any trial is a
moral decision. In this sense, the first difference between the legal and medical fields is
that the practices of the former are guided by morals, those of the latter by science. This
is the first source of the disputes found in our data: morality versus science. This
observation helps explain why the physicians interviewed are mostly favorable to the
abortion of non-viable fetuses (even those who are against the abortion of other fetuses),
while magistrates who oppose abortion in general also oppose the practice in the case of
non-viable fetuses (even when they acknowledge that these fetuses will be unable to
survive outside the womb).

My data suggests that the medical and legal fields influence each other, but also
that this mutual influence is asymmetric. The medical field influences the legal field
insofar as, most of the time, the magistrates accept the medical reports appended to cases
requesting the abortion of non-viable fetuses. This is a positive influence, therefore, since
the legal field is deploying knowledge produced by another field in order to do its job.
The legal field, for its part, influences the medical field by controlling it, determining
whether a given medical practice is within legal bounds or not – a negative kind of
influence, therefore. One example outside the issue of abortion is litigation for medical
malpractice. Albeit not part of this study, these were not forgotten by the doctors I
interviewed, as we find in the following statement:

I believe one exam is not enough. I usually forward it to other doctors,

ultrasound experts whom I trust. In order to protect myself, you know,
because here we’re in this tricky area of medical litigation. (…) Today,

there’s an over-emphasis on preserving the fetus. There’s this specter

of legal action, malpractice for instance – in the past, we would assist
vaginal childbirth, but today it’s C-section. (Ronaldo, gynecologist-
obstetrician, Hospitals A and B.)

The medical field has less refractive power, therefore, and so less autonomy
because it cannot evade the law. The legal field, in turn, can perform its functions
unperturbed, based solely on its own concerns: laws and morality. The autonomy of the
fields is a second difference emerging from my data, and also a motive of dispute between
the two.

Finally, another difference between the medical and legal fields worth
highlighting is that medicine is located at the action end of the scale, and the judiciary at
decision end. Even though medicine is based on scientific knowledge, enjoys broad public
recognition and influences social life, it does not hold decision-making power – it can
only implement or recommend action. This is perhaps the sharpest point of dispute
between the two fields, since magistrates are deciding on issues generally recognized as
belonging to the medical domain.

To summarize the argument made by one of the magistrates: physicians require

legal authorization to carry out the abortion of non-viable fetuses because, technically
speaking, they have no authority or legal backing to make this decision on their own.
From this viewpoint, when some magistrates assert that it is up to doctors to decide
whether or not to abort non-viable fetuses, they are not abstaining from a decision by
transferring responsibility to the doctors. Behind this claim is the view that it is the
doctor’s responsibility to ascertain whether the risk is supported by law and, if so, to act
accordingly – otherwise it would be considered an ‘elective’ abortion and thus criminal
and non-‘authorizable.’

CONCLUDING REMARKS Formatted: Font: (Default) Times New Roman, 12 pt,

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According to Freidson (1970), the social recognition of medical doctors’ authority

to treat issues concerning health and the body made medicine a ‘moral enterprise,’9
capable of actively intervening in the social definitions of health and sickness, normality
and abnormality, valid in any context. Commenting on the importance of medicine in our
society, Simone Novaes and Tânia Salem (1995) remarked that, through their social
legitimacy, medical doctors impose standards and guidelines for solving their patients’
health problems. Their expert knowledge has shaped and defined how conflicts –
frequently engendered by advances in medical technologies – can be solved. The
scientific field is separate and independent of the medical field, yet the latter relies on the
former to develop its practices – thus science becomes integral to medicine. The legal
field, for its part, has no scientific basis, but is grounded instead on morality. Though
different, the two fields may influence each other (Bourdieu 1996, 2007a). Insofar as the
claims advanced by magistrates favorable to the abortion of non-viable fetuses are
intended to authorize this procedure, the medical field becomes a source of supporting
evidence – for instance, through innovations in prenatal diagnoses and the trustworthiness
with which science imbues them. In this sense, even though these magistrates
acknowledge that the risk involved in pregnancies of non-viable fetuses is virtual, most
of them consider fetal non-viability to be an unquestionable fact – hence, there is no sense
in taking this kind of pregnancy to full term. This kind of medical justification is further
compelled by the centrality of the notion of risk in modern society (Rabinow 1996, Rose
2007). In most cases, requests were granted, and a risk-based discourse was deployed as
moral justification for authorizing the abortion of non-viable fetuses as a medical decision
and thus factual and necessary.

Nevertheless, my data also shows that fetal non-viability by itself is insufficient

to authorize abortion. Abortion has to be justified morally. To agree that a woman may
carry out an abortion ‘just’ because the fetus is non-viable amounts to recognizing that
the woman’s wish forms part of that choice, and this usually is not sufficiently persuasive.

According to Freidson: “Medicine […] is oriented to seeking and finding illness, which is to say that it
seeks to create social meanings of illness where that meaning or that interpretation was lacking before. And
insofar as illness is defined as something bad – to be eradicated or contained – medicine plays the role of
what Becker called the ‘moral entrepreneur.’ Medical activity lead to the creation of new rules defining
deviance; medical practice seeks to enforce those rules by attracting and treating the newly defined deviant
sick” (1970:252). When defining illness, medicine classifies peoples as normal or abnormal – and this is
where its ‘morality’ resides, in the act of conceiving illness as deviance, and the patient as a deviant.
Moreover, although it condemns the disease rather than the patient, the latter may be held responsible for
his or her condition.

Authors such as Wiese and Saldanha (2014) and Porto (2009) have demonstrated the
generally negative view that medical doctors and legal experts have concerning selective
abortion, which explains why these professionals discriminate against women who
undergo clandestine abortions. Consequently, the chief argument made by informants to
justify the abortion of non-viable fetuses was the risk that this kind of pregnancy poses to
the woman’s health. The study found that both physicians and magistrates significantly
manipulate the category of risk, since, as the interviewees affirmed, pregnancy with a
non-viable fetus does not imply absolute risk. Instead, risk is a prognosis that may or may
not be actualized. In other words, danger to the woman’s life is a possibility rather than
an inevitability in this kind of pregnancy. When informants resort to the rhetoric of risk,
therefore, in order to render the abortion of non-viable fetuses morally acceptable, their
aim is to distance abortion from the domain of the woman’s individual choice by framing
the intervention as a therapeutic abortion, recommended by the doctors as a procedure to
safeguard the patient’s health. Though flexible, the category of risk is scientific: risk can
be identified, classified, measured.

Another point to be emphasized is the polyvalent nature of the discourses

employed to justify decisions on the abortion of non-viable fetuses. Regardless of their
eventual stances, all magistrates took the notion of risk into consideration when framing
their decisions. Risk-based rhetoric is deployed both to affirm the need for abortion and
to remove the abortion of non-viable fetuses from the provisions for legal abortion, as
well as to attribute responsibility for decision-making to physicians. My data showed that
even though the magistrates’ views on the abortion of non-viable fetuses are linked to
fetal non-viability and the sacredness of life, legal decisions have to adopt justifications
that are compatible with the legal framework. Claims made in legal decisions as formal
arguments must always draw on the law and its interpretation. Thus, risk – which may
translate into therapeutic abortion – is the argument that makes most sense in the legal
field in order to ground decisions on the abortion of non-viable fetuses.

Behind the flexibility in the notion of risk observed in my data is a tension between
the medical and legal fields concerning the abortion of non-viable fetuses. Both are
hegemonic fields in our society, capable of establishing socially recognized norms and
truths. But does one of them enjoy more legitimacy than the other? The answer has to be
yes. At least when it comes to fetal non-viability, this study showed that the medical field
is constrained by the legal field. While the medical field is about action, the legal field is

about decision making. Decisions made in the latter are valid for all other fields: hence
physicians’ actions have to comply with legal decisions. Before the Supreme Court ruling
on anencephaly, medical doctors were responsible for diagnosing the problem and
recommending a procedure – abortion – for treating it. But the final word on what was to
be done belonged to the magistrate, who would provide a judgment based on the law.
Hence, it was up to the magistrate to decide whether the abortion of an anencephalic fetus
was correct, ethical or moral, and the physician had no option but to comply with this
decision. My data showed that in some cases medical reports on the abortion of
anencephalic fetuses were entirely ignored by the magistrates, who evaluated the requests
in accordance with their own views. When it comes to anencephaly, though, the tensions
between the medical and legal fields are not limited to controls on medical practice.
Decision-making on the abortion of non-viable fetuses seems to be marked by uneasiness
between physicians and magistrates, with each side trying to shift responsibility over to
the other. This suggests that neither medical doctors nor magistrates are at ease with the
decisions and actions surrounding abortion.

Finally, it should be mentioned that, even after Brazil’s Federal Supreme Court
ruled in favor of the abortion of anencephalic fetuses, other cases of fetal malformations
continue to be judged on a case-by-case basis. Lack of consensus on the morality of
aborting non-viable fetuses is likely to persist in struggles between the medical and legal

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